Monthly Archives: November 2009

The Obama administration will announce today that accused Sept. 11 attacks mastermind Khalid Sheik Mohammed and three alleged co-conspirators will be tried in federal court in New York instead of a military commission.

Attorney General Eric Holder is expected to make a formal announcement at a press conference later today.

President Obama, speaking to reporters in Japan, said the federal trial will come with the same accountability standards as a military trial. “I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice,” Obama said. “The American people insist on it, and my administration will insist on it.”

Preemption problems: “Mess,” “Muddle” and “chaos” were words used do describe the state of the doctrine preemption after the Wyeth v. Levine decision – by people on both sides of the issue – at the Federalist Society’s National Lawyers Convention. (The BLT)

Med-mal HIPAA change: Medical malpractice defense lawyers may not know that they are likely covered by new HIPAA rules on privacy breaches of health data. (Lawyers USA)

Massey overturned again: For a third time, the West Virginia Supreme Court has overturned a $50 million judgment against Massey Energy – the case that went all the way to the Supreme Court, which ordered a rehearing of the case without the judge who received campaign contributions made by Massey’s CEO. (Charleston Gazette)

Gitmo casualty: Sources tell The Washington Post that White House Counsel Gregory Craig will resign as early as today, ending a tenure marred by the struggle to close the Guantanamo Bay detention center. (WaPo)

During oral arguments Tuesday, Justice Stephen Breyer thought he’d found a perfect way to interpret and apply a federal immigration law. His only reservation: no one else had ever thought of it.

“Nobody has,” Breyer said. “Now, to me [the application] makes sense, but apparently to no one else. So I would like to be talked down.”

Amanda Leiter, a professor at Catholic University’s Columbus School of Law, tried to make her case politely.

“With respect, Your Honor, I think that ‘no one’ includes Congress,” she said.

“I didn’t leave anyone out,” Breyer said. “‘No one’ is universal.”

That was one of five laugh-inducing comments from Breyer during oral arguments this week, making him the Funniest Justice of the week, and bringing him up to second place in the overall standings. He and Chief Justice John G. Roberts, Jr., however, still trail far behind Justice Antonin Scalia, who has more laughs this term than Breyer and Roberts combined.

John J. O’Connor, III, husband of retired Supreme Court Justice Sandra Day O’Connor, has died of complications of Alzheimer’s disease.

O’Connor passed away this morning in Phoenix. He was diagnosed with the disease nearly two decades ago. Justice O’Connor cited the need to care for her ailing husband as one reason she decided to retire in 2005.

The couple met as law students at Stanford University, where the late Chief Justice William Rehnquist was also a student. John O’Connor went on to practice law in Phoenix for nearly a quarter century. After his wife was appointed to the Supreme Court, he practiced in Washington.

USA Today‘s Joan Biskupic, author ofAmerican Original, a new biography of Justice Antonin Scalia that was released this week, sat down with Tom Goldstein of Akin Gump and SCOTUSblog to talk about the man many find to be the most fascinating and funny justice on the Court.

The full podcast of the chat can be found here on SCOTUSblog, but here are some highlights from their discussion on a topic that has generated a lot of chatter among Court watchers: Scalia’s religion, and it’s effect, if any, on his rulings.

Biskupic talks about Scalia’s firm contention that his judicial views are not at all shaped by his Catholic faith. At the same time, she said, Scalia is passionate about his religion. He is also passionate about Roe v. Wade. But those are two, separate, parallel passions, Biskupic explained.

“That was one of the hardest chapters to write,” she said of the chapter titled Passions of his mind . “So many people view his rulings on abortion and church-and-state issues as being influenced by his Catholicism, even though the justice himself says: ‘Absolutely not. I read text. I am influenced by the original understanding of the constitution. I’m influenced by the text of the law.'”

But, Biskupic explained, “there are two passions here that cannot be denied, and that’s [an] an intense passion about Catholicism, [and] he has an intense passion for Roe v. Wade. And those two things cannot be denied. He says that they are parallel, that they do not intersect. But I basically put them in the same context and let him have his say, and let critics [have] their say.

“And I think what readers should draw from it,” Biskupic continues, “is that he himself believes that he cannot separate his religious life from his intellectual life. And he himself also believes that he comes to abortion independent – in terms of his decisions – independent of those religious views.”

In an order that hits close to home for many Washington-area residents, the Supreme Court yesterday cleared the way for John Allen Muhammad, also known as the D.C. Sniper, to be executed tonight in Virginia.

Yesterday the Court denied Muhammad’s application to stay his execution, exhausting his judicial remedies. Unless Gov. Timothy M. Kaine intervenes, Muhammad will die by lethal injection tonight, a sentence for the shooting death of Dean H. Meyers in Virginia – one of 10 shooting deaths in and around the Washington area that terrorized the region for three weeks in October 2002.

Stevens noted that, after reviewing the case, he did not disagree with the decision to deny certiorari in the case. But, Stevens said, had the Court granted the temporary stay, it would have had the opportunity to fully vet the case at its conference in two weeks. But because state officials set the execution for tonight, the Court wouldn’t get that chance.

“This case highlights once again the perversity of executing inmates before their appeals process has been fully concluded,” Stevens wrote in an opinion joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. “Under our normal practice, Muhammad’s timely petition for certiorari would have been reviewed at our Conference on November 24, 2009. Virginia has scheduled his execution for November 10, however, so we must resolve the petition on an expedited basis unless we grant a temporary stay. By denying Muhammad’s stay application, we have allowed Virginia to truncate our deliberative process on a matter – involving a death row inmate – that demands the most careful attention.”

Stevens renewed his call for automatic stays of death row inmates making their first appeal to the high court. “Such a practice would give meaningful effect to the distinction Congress has drawn between first and successive habeas petitions,” Stevens wrote. “It would also serve the interests of avoiding irreversible error, facilitating the efficient management of our docket, and preserving basic fairness by ensuring death row inmates receive the same procedural safeguards that ordinary inmates receive.”

Meanwhile, the Supreme Court hears oral arguments this week, beginning with a pair of cases which consider whether sentencing juveniles to life without parole for crimes other than murder violates the Eighth Amendment’s prohibition of cruel and unusual punishment. (Graham v. Floridaand Sullivan v. Florida).

In other news:

Recalculating health costs: The House health care reform bill may not be as bad for business as many in the health care industry might have feared at the beginning of the debate. (New York Times)

More unemployed lawyers: Last month 5,800 legal jobs were eliminated, indicating that layoffs have increased again after leveling off this summer. This comes as the general unemployment rate hit its highest mark in more than 25 years. (ABA Journal)

‘Mad Men’ madness: Even former acting Solicitor General Walter Dellinger is a fan of the ’60-based AMC show. He laments about traveling to China, missing last night’s finale. (DC Dicta note: It was really, really good!) (WSJ’s Law Blog)

The discovery channel: As defense attorneys and some judges push for a change in federal criminal trial discovery rules in the wake of the botched prosecution of former Sen. Ted Stevens, the Justice Department is not ready to take that step, focusing on training programs instead. (The BLT Blog).

You rarely see GOP Sen. John Cornyn on the same side of an issue with Democrats like Sens. Chuck Schumer and Russ Feingold. But yesterday they all joined Sen. Arlen Specter in introducing a resolution that Supreme Court proceedings should be televised.

Now, the resolution can’t force the justices of the Court to get ready for their close-ups. But it does put the issue of televising High Court sessions back in the headlines.

“The Supreme Court makes pronouncements on Constitutional and federal law that have direct impacts on the rights of Americans,” Specter said. “Those rights would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented.”

Specter also pointed out that some justices – including Justice Antonin Scalia, who has expressed reservations about televising oral arguments – have no problem going before cameras on network news shows to promote books and the like.

“We cannot accept the justices’ plea for anonymity when they so regularly appear before the camera,” Specter said, according to The BLT’s David Ingram.

Specter also noted that the Court’s most vocal opponent of televising Court arguments, Justice David Souter, has retired, while other justices such as Justice Sonia Sotomayor has indicated a willingness to discuss the positive potential of televised arguments.

Meanwhile, in other legal news inside the Beltway,

An ENDA to bias? The chairman of a key Senate committee urged passage of the Employment Non-Discrimination Act, which would bar adverse employment actions based on sexual orientation or gender identity. (Lawyers USA)

Leaving H1N1 home: Emergency temporary federal legislation has been introduced that would guarantee five paid sick days per year for a worker sent home for a contagious illness, such as the H1N1 flu.(Lawyers USA)

“We don’t like to decide these questions, you know, initially. We like to have some lower court do the dirty work, and we can correct them. It’s a lot easier that way.”

That was Justice Antonin Scalia said during oral arguments in NRG Power Marketing, LLC v. Maine Pub. Util. Comm’n Tuesday, drawing one of the six laughs he earned this week. That pads Scalia’s lead so far in the Funniest Justice contest.

It’s worth nothing that Justice Stephen Breyer earned three laughs this week – an impressive number considering he had laryngitis.

Usually the attorneys that argue before the Supreme Court are seasoned law firm partners, law professors, and longtime appellate advocates. But yesterday, a law firm associate got his chance to argue before the Court in a critical case that could determine clarify just what conduct by criminal prosecutors is shielded from civil liability.

Yesterday, Mayer Brown associate Steve Sanders made his Supreme Court debut, arguing the case Pottawattamie County v. McGheeon the petitioners’ behalf. And in his first appearance, he went against a veteran: former Solicitor General Paul Clement, who has argued more than 50 cases before the High Court.

After the argument, Sanders took time to chat with DC Dicta.

DC Dicta: So, were you nervous? You didn’t look like you were.

Sanders: I think the word I would use is serene. I felt well prepared. I got a decent night’s sleep. It was sort of like being in law school, and you know you did everything you possibly can to study for the exam. You know it at that point, and you are ready to go.

DC Dicta: You faced some heavy questioning from Justices Anthony Kennedy and Ruth Bader Ginsburg right off the bat.

Sanders: I think Justice Kennedy asks provocative questions at oral arguments. He asked Mr. Clement some sharp questions as well. I went to the Court to observe oral arguments [Tuesday] and watch Justice Ginsburg’s style. I didn’t interpret her questions as hostile, or as coming from a sense that she’d made up her mind.

DC Dicta: I think even the seasoned Supreme Court lawyer finds the prospect of arguing before Justice Antonin Scalia daunting. What was that like?

Sanders: Going from our position in the case and the law we relied upon, we had good reason to believe that Justice Scalia might agree with our position. I didn’t expect Justice Scalia to be a all hostile to our position. [In fact,] I think Justice Scalia tried to toss me a softball during the rebuttal. I just missed it.

Overall, I think that the hostility you face during moot court sessions – when you argue before law professors and other people trying very, very hard to be skeptical of your argument – it tends to be far scarier. The justices of the Supreme Court are more polite and have more good will.

If you argue before the Supreme Court, there are many things you must remember – things that have absolutely nothing to do with your case. For example, never refer to a justice by the wrong name. Never refer to a statute if the text of that statute is not in your brief. And now we have another rule: never, ever use a word that doesn’t exist in the English language. That will irk Justice Antonin Scalia.

Attorney Randolph Barnhouse learned that lesson yesterday. During his oral argument he first used the word “inchoate,” which means not completely formed. So far, so good.

But then, in reaching to find an antonym, Barnhouse used the word “choate.” That’s when Scalia piped up.

“There is no such adjective,” Scalia said. “I know we have used it, but there is no such adjective as ‘choate.’ There is ‘inchoate,’ but the opposite of ‘inchoate’ is not ‘choate.'”

“All right,” Barnhouse said, wanting to move on to the substance of his argument. But Scalia wasn’t done.

“It’s like ‘gruntled,'” Scalia said, dropping the “dis” from “disgruntled.”

“Well I’m wrong on the [word], but I think I’m right on the law, Your Honor,” Barnhouse said. But Scalia didn’t seem to hear him.

“Exactly. ‘Disgruntled’ – and the opposite of ‘disgruntled’ is ‘gruntled,'” Scalia said, not letting it go.

“Is ‘gruntled,” Barnhouse said, finally playing along as the audience laughed.